The new UNHRC resolution and Hybrid Court

2017-03-21 00:14:44

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This week under a fresh UN Human Rights Council (UNHRC) resolution, Sri Lanka is likely to receive a two-year-extension to fully implement a previous UNHRC resolution approved in October 2015. Like the previous one, the new resolution will be co-sponsored by Sri Lanka.
This would also likely to be flaunted like its predecessor as another triumph of the government. That the European nations and America have softened their earlier stance towards Sri Lanka could well be an achievement of the government’s policy. However, the dagger of a hybrid court, i.e. a war crime court that would have foreign judges alongside Sri Lankan ones, remains the same and the fresh resolution would not make a difference to the status quo. That is in spite of the assertions by the President, and now the Prime Minister and the Foreign Minister that a hybrid court would not be feasible.

The most consequential clause of the October 2015 resolution read as, “…takes note with appreciation of the Government of Sri Lanka’s proposal to establish a Judicial Mechanism with a Special Counsel to investigate allegations of violations and abuses of human rights and violations of international humanitarian law, as applicable; and affirms that a credible justice process should include independent judicial and prosecutorial institutions led by individuals known for integrity and impartiality; and further affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators.”
Lately the President has come out most conspicuously against the induction of foreign judges in a local war crime court. Most recently addressing security forces personnel and the police in the Airforce Base in Palaly on March 4, he took a swipe at the Prime Minister’s own committee on reconciliation when he said, “There was a proposal made demanding that Sri Lanka must have foreign judges to investigate allegations against the war heroes. I clearly said that I am not ready to accept that. There are some Sri Lankans, who work through NGOs and reach wrong conclusions for the sake of money. They carry out wrong campaigns against the armed forces. I am not ready to govern the country in accordance with their wishes. I am not prepared to bring allegations against the armed forces in accordance with their wishes. I am not willing to hear cases according to their wishes.”
Recently the Prime Minister himself ruled out a hybrid court, citing such a mechanism would require a referendum.

This week, Sri Lanka should inform the UNHRC about the cross party consensus in opposition to foreign judges. Hiding behind the bush hoping things would be different in two years would not help. The Government’s vacillation and its effort to be nice to everyone, and saying one thing in Geneva and another at home, has aggravated the problem. The government should make it known in no uncertain terms that it would not be signing up to a hybrid court. Commonsense should prevail. A government that acquiesces to a hybrid court would be left with little legitimacy to govern. It would lose power, but before that it would set off a political instability of the magnitude that was last seen during the forced imposition of Indo-Lanka Peace Accord in 1987.

It would certainly be morally right to investigate the conduct of war. However, politics is less about being self-righteous, it is about being practical. Individual culpabilities of certain military and non-military individuals who acted in self-gain, running abduction rackets and settling personal scores need to be investigated and punished. However, efforts to scrutinize the conduct of an entire armed force, worse still with the help of foreign judges,smacks of a dangerous level of appeasement. Those demands for a war crime court spearheaded by the LTTE front groups and later taken up by rights champions of the EU and America (partly because ex-president Mahinda Rajapaksa was unresponsive towards even the most basic of Tamil concerns) are one way of settling scores for defeating terrorism.
The government should address Tamil grievances, as it has been doing during the last two years. However, it should draw a line which it would not cross: the so called hybrid court is obviously a red line. Any investigation into military should also take note the extreme security vulnerability of the state at the time. Why Sri Lanka today has luxury to talk about reconciliation is first and foremost the most formidable threat to survival of this state was crushed by military means. Otherwise, people would be worried about the next suicide bomb and journalists would be busy getting the latest body count from the Northern front.
Two and half decades of brutal war has obviously taken a toll on Tamils, whose grievances can only be addressed by a government proactively investing resources on those matters, be it Tamil speaking public servants, police officers and even district specific affirmative action in education, recruitment for public sector, investment in the worst affected areas in the North in order to rectify existing ethnic anomalies.

That is in addition to proposed constitutional reforms that the government is planning to enact to address Tamil aspirations. Such constitutional reforms would require consensus in the South. However the danger is that this single issue agenda of a war crime court, paraded in a lofty phrase of a ‘transitional justice’ would obstruct the government’s reformist agenda.
The sad truth is that Tamil political question, with its both real and imagined grievances has obstructed this country’s progress since theindependence. Internationalization of the Tamil problem partly as means of intimidating Colombo dates back immediate after the independence. Later in the 1960s, when the then Dudley Senanayake administration lobbied for membership of ASEAN, then foreign minister of Singapore S. Rajaratnam (and later deputy prime minister) blocked Sri Lanka’s entry citing Sri Lankan Tamil concerns. (That is quite a way of returning a favour from a man whose parents, Jaffna Tamils domiciled in Malaya, had come to Jaffna to give birth to their child in the Tamil cultural capital).

Sri Lanka’s democratic credentials were distorted by the maximalist posturing of Tamil politics. Perhaps what Sri Lanka could not do, a Singapore in terms of economically and synchronized ethnic harmony was our politics then (and now) did not allow to lock up dissenters and politically incapacitate political opponents through trumped up liable cases.
Maximalist posturing of the most articulate in Tamil politics did little good for the Tamil people themselves. It took them from Vadukkodai to Nandikadal. During those three decades of conflict, the loss of the status of Tamil people is unparalleled. Their status quo in the Sri Lanka state need to be restored, but internationalization of a local problem would do little.
However, it is exactly what Mr. Wigneswaran, the Northern Chief Minister and many other lesser mortals still keep doing. For the time being, they are a local, Jaffna-specific, phenomenon. However, they can have national implications by fanning a reactive Sinhala ultra nationalism in the South, which Mr Rajapaksa is eagerly awaiting to fume into a bushfire.
The government has to navigate through these two extremes, and address the legitimate grievances of the Tamils, while also heralding a greater democratization of the entire country. It cannot compromise one for the other. To do whats necessary, it should avoid political instability, first and foremost in the South. To that end, it should avoid a hybrid court like a plague.